Title VII Does Not Protect Gay Organist Harassed & Terminated by Employer
Employees of religious organizations who serve in “ministerial” roles are not protected by Title VII of the Civil Rights Act of 1964 because of First Amendment protections given to religious organizations, called the “ministerial exception.” A recent decision of the Seventh Circuit Court of Appeals extended the “ministerial exception” to workplace harassment. Demkovich v. St. Andrew the Apostle, 3 F.4th 968 (7th Cir. 2021).
Gay Church Music Director Harassed and Fired by Priest
Sandor Demkovich was an openly-gay music director for his parish. Father Jacek Dada, Demkovich’s supervisor, subjected Demkovich to derogatory comments and demeaning epithets about sexuality, and terminated him shortly after Demkovich married his male partner. Demkovich filed a Title VII sex discrimination claim, challenging the harassing environment, not his termination, to avoid the application of the “ministerial exception.” The Seventh Circuit applied the “ministerial exception” to the harassment claim.
Religious Organizations Can Avoid Title VII Protections for “Ministerial” Employees
The First Amendment prohibits Congress from making any law to establish a religion, or to prohibit the free exercise of religion. The Free Exercise Clauses of the First Amendment protect a religious organization’s right to decide matters of faith and religious doctrine without government intrusion. The Establishment Clause of the First Amendment prohibits government involvement in ecclesiastical decisions.
Challenges about the boundary between religious and civil authority date back to the founding of the country.[1] The tension between the independence of religious decision making in work places, while insisting upon basic norms in the employment setting, is a long-standing challenge.
Although religious organizations do not enjoy general immunity from secular laws, the Religious Clauses protect their autonomy to internally make essential decisions to their central mission. Selection of individuals to play certain key roles is a component of this autonomy, says the U.S. Supreme Court in Our Lady of Guadalupe School. Morrissey-Berru, 140 S.Ct. 2049 (2020). Courts include not just actual ministers or clergy as “ministers,” but also employees who are administrators, teach religious studies, and who lead religious activities.
The “Ministerial Exception” Allows Religious Organizations to Avoid Title VII Claims From “Ministerial” Employees
The United States Supreme Court in Hosanna-Tabor and Our Lady of Guadalupe v. Morrissey-Berru, 1405 S. Ct. 2049 (2020) made Title VII inapplicable to the hiring and firing decision by religious organizations for their “ministerial” employees, commonly referred to as the “ministerial exception.” The U.S. Supreme Court explicitly did not address whether a “ministerial” employee who was subjected to harassment or a hostile work environment could file a Title VII claim. In Demkovich, the Seventh Circuit ruled they could not.
Can a court apply Title VII to any aspect of the employment relationship between a “ministerial” employee and a religious organization without unreasonably entangling itself in religion in violation of the Free Exercise or Establishment Clauses? The court in Demkovich said “no,” noting the protected interest of a religious organization in its “ministers” covers the entire employment relationship, from hiring to firing and everything in between. The dissenting opinion cautioned that the “ministerial exception” should not include harassing behavior that unreasonably interferes with an employee’s work performance.
Seventh Circuit Could Have Required Courts to Consider Application of the “Ministerial Exception” on a Case-By-Case Basis
Prior to the Demkovich decision, some courts weighed whether the “ministerial exception” applied to Title VII claims, by distinguishing between a “tangible” or an “intangible” employment action. “Tangible” employment actions typically include hiring, compensation, job duties, promotions and termination. “Intangible” employment actions typically include discriminatory remarks and insults. If the conduct challenged by the employee was “intangible”, the court would consider whether scrutiny of a Title VII claim would result in excessive church-state entanglement. If it did, the “ministerial exception” would apply and the Title VII case would not proceed. If it did not, the Title VII case would proceed.
The U.S .Supreme Court in Hosanna-Tabor Eangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012) and Our Lady of Guadalupe School, applied the “ministerial exception” to teachers who challenged their terminations under Title VII. Because neither case addressed whether the “ministerial exception” barred harassment or hostile work environment claims under Title VII, the Seventh Circuit was not obligated by U.S. Supreme Court precedent to apply the “ministerial exception” to Demkovich’s harassment claim.
Demkovich Decision Will Have Significant Legal Impact
After Demkovich, the “ministerial exception” bars all Title VII claims against religious organizations by their “ministers” regardless of how severe, pervasive or hostile the work environment is, or whether the hostility is motivated by race, sex, national origin, disability, or age. The exception applies even if the relevant circumstances do not involve religious faith or practice.
The “ministerial exception” applies to employment-related claims even if the claimed wrongful conduct has nothing to do with the employee’s religion. For example:
- If a religious organization does not give an interview for an open position as a choral director to a female because the person in charge of interviewing does not want to hire a woman, in light of the Demkovich decision, the female likely has no recourse under Title VII, because the position is usually considered “ministerial” for purposes of Title VII.
- If a co-worker or supervisor of an African American minister working for a church left nooses on the desk of the African American minister and repeatedly subjected him to racial epithets, the Demkovich decision would bar a Title VII racial harassment claim.
- A teacher could be subjected to pervasive and unwelcome sexual attention or a person of color could be harassed and intimidated because of their national origin, and have no recourse under Title VII if they are “ministers.”
Options for Employees of Religious Organizations Who Experience Workplace Discrimination
Because another Circuit Court of Appeals ruled the opposite of the Seventh Circuit, the U.S. Supreme Court may take a case to resolve the inconsistency in interpretation of the reach of the “ministerial exception.” Thus, Demkovich is likely not the final word on this issue. In the meantime, the focus of challenges to the application of the “ministerial exception” may shift to who is a “minister.”
Courts generally recognize as “ministers” categories of employees who are not ministers or clergy, but who provide at least some religious training or activities as part of their job duties, including teachers and choral directors. Some religious organization may try to expand the scope of employees considered “ministers” by distributing religious duties to as many staff members as possible.
An employee’s title does not determine whether or not they are “ministerial.” Rather, the law focuses on what work an employee does. In Our Lady of Guadalupe School, Justice Alito defined “ministers” as those who lead a religious organization, conduct worship services or important religious ceremonies or rituals, or serve as a “messenger” or teacher of a faith. Examples of jobs courts have ruled do not qualify as “ministerial” for purposes of the “ministerial exception” include:
- an editorial secretary at a religious publishing company,
- a Catholic High School librarian
- a Catholic school language arts teacher who did not lead religious observance and was deemed a “lay teacher”
- a facilities manager and janitor at a synagogue, and
- a computer teacher at a Catholic high school who was not a Catholic and who was barred from teaching Catholic doctrine
Seek Help From Experienced Employment Lawyers If You Face Workplace Discrimination
Hawks Quindel, S.C. employment lawyers represent employees in a wide variety of employment matters. Contact one of our employment lawyers if you are experiencing discrimination or other challenges in your workplace.
[1] Michael McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).
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